46 Title 3 Section 7 on which Will© relies for his statement of the law,this is what Voet says (Gane’s translation) :—
“ Although payment to my creditor’s creditor will not be validwithout my creditor’s consent except in so far as my actions on hisbehalf have been for his benefit though unknown to him .”
It will thus be seen that before the sub-tenant can plead that he hasdischarged his obligation to pay his landlord the rent due to him bypaying such rent to the head landlord, he must also prove that suchpayments were made for the benefit of the landlord or to prevent his owngoods being distrained by the head landlord. These are questions offact involving evidence and must be covered by express issues. It wasnever the 1st defendant’s case that he was a tenant of the plaintiff anddischarged his obligations by payment of rents to the head landlord. On
SINNETAMBY, J.—Solomon v. Mohideen Paihumma
the contrary he repudiated his contract of tenancy with the 1st defendantand it was not open to the judge on his own to have thought of thisdefence which neither party contemplated in his pleadings or in his issues.
In appeal before us it was not suggested that the sub-tenant can paythe head landlord unless such payment was made for the benefit of hisown landlord. Whether that be the true legal position or not, specificissues should have, in my opinion, been framed; otherwise, it would havecaused prejudice to the parties, Indeed, the learned Judge at one stagein rejecting the evidence of the plaintiff states that she did not produceany receipt in support of her statements that she had paid rents duefrom her to the head landlords. It was not necessary for her to producesuch receipts. She said she had them with her and ordinarily it wouldhave been totally irrelevant to produce them as the question of whethershe was or was not in arrears in regard to rent payable by her to thehead landlords was not put in issue. Nevertheless, there is some evidencegiven by her to the effect that she had made payments to the head landlordsand that if an accounting is taken there would be monies due to herfrom them. One of the head landlords namely Mrs. F. V. de Silva whenquestioned as to whether she had received Rs. 6,000 as an advance fromthe plaintiff’s husband who held her power of attorney, at first said shecould not remember but when a receipt bearing her signature was producedand shown to her, she acknowledged her signature. She had also writtena letter P 2 to the plaintiff admitting having taken Rs. 6,000 in advance.She further stated that she remembered having received Rs. 1,000 orRs. 1,500 as advance against rent due to her. She was questioned inregard to these matters solely for the purpose of showing that the 1stdefendant was not her tenant and that it was the plaintiff who was hertenant. All these matters would have been properly gone into if properissues in respect of them had been framed.
In my opinion, the learned Judge has totally misdirected himself inembarking on these lines of thought and in deciding the case on matterswhich were not put in issue. The question he had to determine wasfirst whether the 1st defendant was a tenant of the plaintiff and secondlywhether he was in arrears of rent prior to April, 1958, for more than onemonth after it had become due. These matters have not beensatisfactorily dealt with.
It was contended on behalf of the appellant that having regard toprovisions of section 772 of the Civil Procedure Code it was not open tothe plaintiff-respondent to question the validity of the Judge’s findingsthat the 1st defendant was not in arrears of rent for the period ended1st April, 1958‘. In as much as there has been no objection filed to theabove decree as provided for in the relevant sections, it is perfectlycorrect that the respondent is not entitled, in appeal, to obtain a variationof the decree in regard to the rents payable to him for that period, butit was contended on his behalf that even without filing an objection hecould in terms of section 772 support “ the decree on any of the groundsdecided against him in the court below ”. The meaning of the egression
Nadarasa v. Navamany
* ‘support the decree on any of the grounds decided against him in thecourt below ” contained in section 772 (1) docs not appear to have beeninterpreted in any of the decisions of our courts, but it was contendedon behalf of the respondent that he could attack so much of the findingsas are adverse to him for the purpose of his argument, so long as ho doesnot ask for the judgment and decree of the lower court to be in any wayaltered. I do not agree. The meaning of the expression appears to meto be that the respondent must accept the correctness of the decisionwhich has been made against him and on that basis, if the findings helphim, try to support the decree. This appears to be the view taken by theHigh Courts of Calcutta, Madras, Lahore and Rangoon in respect ofsimilar, provisions contained in the Order No. 41 Rule No. 22 of theIndian Civil Procedure Code, vide Chittaley 1908 ed. page 2674.
From what has been stated above, it is manifest that the learned trialJudge has decided this case on a consideration of matters which were notin the contemplation of the parties and in respect of which they did nottender evidence.
In the circumstances, the judgment of the learned trial Judge cannotbe allowed to stand and I think that the proper course for us to follow isto set it aside and remit the case for a fresh trial upon proper issues. Ifthe 1st defendant desires to do so, he may adopt the view of the learnedDistrict Judge that he made payment on behalf of the plaintiff to thehead landlord. Neither party will be entitled to the costs of this appealbut the costs of the court below will he costs in the cause.
Sansoxt, J.—I agree.
Case remitted for a fresh trial.